Opinion
A149076
04-11-2017
In re ELENA H. et al., Persons Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. VALERIE H. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. Nos. 4512-DEP, 4513-DEP)
The juvenile court terminated the parental rights of Valerie H. (Mother) and Luis F. (Father) with respect to their two daughters, Elena and Andrea. (Welf. & Inst. Code, § 366.26.) Both Mother and Father appeal from that order, arguing the court erred in determining the beneficial relationship exception inapplicable. Father also maintains the juvenile court failed to ensure compliance with the notice and inquiry provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Section 300 Petition and Detention Report
In November 2014, when Elena was five years old and Andrea was three years old, the Sonoma County Human Services Department (Department) filed a juvenile dependency petition, which alleged the children suffered, or were at substantial risk of suffering, serious physical harm (§ 300, subd. (b)) and serious emotional damage (§ 300, subd. (c)) as a result of their parents' domestic violence. It was alleged that, in September 2014, Father choked Mother and pressed her rib cage to the point she thought Father would break her ribs. Both children were present at the time. Mother previously entered a domestic violence shelter, in June 2014, and reported ongoing abuse in the children's presence. She returned to the family home two days later.
The petition also alleged the children were at risk of suffering serious physical harm (§ 300, subd. (b)) as a result of Mother's medical and mental health concerns, as well as the parents' failure to obtain evaluation of Andrea's observed developmental delays. Specifically, it was alleged Mother had a medical condition that caused her to faint unexpectedly; she was placed on an involuntary psychiatric hold in October 2013 due to threats to harm her child and herself; and, sometime between 2012 and 2013, she attempted suicide by taking an overdose of prescription medication. Attached to the dependency petition was a form stating the social worker had questioned Father and Mother regarding Indian ancestry, which both parents denied.
The Department's detention report indicated the social worker had spoken to Elena, who described Father punching, choking, and slapping Mother. Elena also said she yelled at and kicked Father, in an attempt to stop him. She reported intrusive worry about Mother's safety and frequent bouts of vomiting. The parents, on the other hand, minimized the domestic violence and the risk it posed to the children.
At the detention hearing, Mother denied any domestic violence, as well as any medical or mental health issues. She requested the children remain living with the paternal grandparents, with whom the family lived before the children's removal. Father filed a "Parental Notification of Indian Status" form indicating he might have Native American ancestry. At the detention hearing, the juvenile court questioned Father's counsel regarding Father's belief he might have Native American heritage from an unidentified tribe. The children were ordered detained out of parental custody. Father was adjudged the children's presumed father.
The following exchange took place:
"THE COURT: . . . The Court has before it a form indicating [Father] believes he may have Native American heritage, and there are no tribes listed. Is that because [Father] doesn't know . . . ?
"[FATHER'S COUNSEL]: Correct. It goes back a few generations. He's not sure which tribe is the one that may be appropriate.
"THE COURT: Is there any way he can find out?
"[FATHER'S COUNSEL]: I think it would be grandparents may have some more information. He doesn't have more, himself." The children's paternal grandmother was present at the detention hearing, but no questions were directed to her.
Jurisdiction/Disposition Report and Determination
The December 2014 combined jurisdiction and disposition report indicated the children were placed together in a foster home. Elena was healthy, but very insecure. She often cried and would not participate in normal activities. Andrea did not speak, was unable to feed herself, and could not run. Neither parent was concerned, stating they and Elena had only begun speaking at four years old. The parents had separate supervised visits with the children, twice per week.
The maternal grandparents reported the parents' domestic violence, after being encouraged to do so by Elena's school. The maternal grandmother said Father's abuse was initially psychological, but became violent and occurred in front of the children. Father prevented Mother from having a cell phone, getting an education, working, or receiving treatment for her medical condition. There was also conflict between Mother and the paternal grandmother. The maternal grandfather told the social worker Mother attempted to leave Father on more than one occasion, but Father or his family "hunt her down." He said, "[S]he always goes back."
Both Mother and Father denied any domestic violence and said the maternal grandparents "exaggerate." The paternal grandparents also claimed the maternal grandparents were lying. The social worker opined the children were not safe in the home due to the parents' "adamant denial" of domestic violence. The social worker did not believe the children should be placed with the paternal grandparents because they also denied the allegations and could not "hold strong and appropriate boundaries" with Father. The Department recommended removal of the children from their parents' custody and provision of reunification services.
Significantly, Father's sister accompanied Mother to her interview to ensure Mother was "not bullied" by the social worker "to lie about the allegations."
With respect to ICWA, the social worker indicated Father was born in Mexico, and migrated to the United States with his parents when he was five. Father believed he "may have Indian ancestry by way of his great great maternal grandmother who migrated to Mexico; however he is unaware of the tribe's name, nor does he have access to information regarding the matter." Based on this information, the social worker believed ICWA did not apply.
When the matter came on for jurisdictional hearing, the parents submitted on an amended petition, which made minor corrections to the allegations. The court sustained the petition, declared the children dependents of the juvenile court, removed the children from parental custody, and ordered family reunification services. Specifically, the court ordered Mother to participate in parenting classes, a domestic violence support group, and individual therapy. In addition, she was ordered to undergo a psychological evaluation and take medication, as necessary, to manage her medical condition. Father was ordered to undergo a psychological evaluation and to participate in parenting classes, an anger management support group, and individual therapy. The court held ICWA did not apply, concluding "[t]he information provided by [Father] concerning the children's possible Indian ancestry on [his] side is too speculative, remote and uncertain and does not provide the Court with reason to know that the children are or may be an Indian child [sic]." The court recognized Father told the Department he may have Indian heritage, but found the Department had "made reasonable inquiry . . . and no person . . . suggested that [Father] has any Indian heritage."
Restraining Order
On February 17, 2015, Mother filed a request for a restraining order. Mother stated that, on February 3, Father choked her until she was unconscious. Father left marks on her neck and a bruise on her leg. After an emergency protective order was issued forbidding Father from contacting Mother, the paternal grandfather and Father's friends asked her to call the police station to "get [Father] out of jail." On March 4, the juvenile court granted the restraining order, forbidding Father from any contact with Mother for one year.
Six-Month Review
In the six-month review report, the Department reported Father faced a charge of attempted murder, among others, as a result of the February 3, 2015 incident. Father had been participating in parenting education, individual therapy, and a domestic violence treatment program. Because Father continued to deny any domestic violence and blamed Mother, he was terminated from the domestic violence program after two months. Father was described as "very argumentative" with the parenting educator. Father's visits with Elena and Andrea were consistent and going well; he was appropriate, attentive, and affectionate.
Mother had not missed any visits with Elena and Andrea. She was also reported to be appropriate, attentive, patient, and affectionate with the children. Mother had obtained her own housing and a restraining order against Father. She had completed a psychological evaluation and was participating in a weekly support group for victims of domestic violence, as well as individual therapy and parenting education.
Mother also admitted a long history of psychological, physical, and sexual abuse perpetrated by Father. At times, Elena and Andrea were present when Father attacked her. On at least one occasion, Elena kicked Father and said, "don't hurt mommy." The paternal grandparents knew about the violence and even inflicted violence against Mother themselves. Mother told the social worker Father prohibited her from meeting with social workers unless he, or one of his family members, was present. He also threatened to kill her unless she lied.
As a result of her psychological evaluation, it was recommended that Mother have a psychotropic medication evaluation, receive evaluation and treatment for her medical condition (neurally mediated syncope), and continue in individual therapy and parenting education. Mother's visits with the children had recently become unmonitored, but following a May 18, 2015 violation of the restraining order, returned to being supervised, due to concerns that Mother might be unable to protect herself or her children.
On May 18, 2015, Father was arrested after Mother reported a violation of the restraining order to police. Mother initially claimed Father approached and threatened her. However, she later admitted initiating the contact. Father was "shocked" by the social worker's advice he should have told Mother to leave.
Meanwhile, Andrea underwent a developmental assessment in December 2014, and she was found to be delayed in all areas of development, except fine motor skills. She was making progress with language development, gross motor skills, and feeding herself. Both Andrea and Elena were initially anxious and fearful around adult men, but had grown comfortable with the foster father. Elena was described by the foster parents as having "blossomed into a running, happy, laughing child," who loved to learn and play with other children. However, Elena's therapist said Elena was "nervous, anxious and hesitant, timid and quiet, and guarded." At school, Elena struggled with separating from the foster mother. The foster mother decided to homeschool her. The foster parents reported Andrea was defiant and wet her pants after visitation with Mother. The juvenile court ordered additional services for both Mother and Father up to the 12-month review hearing.
Twelve-Month Review
In the 12-month review report filed on December 7, 2015, the Department recommended termination of reunification services. Mother was "very engaged" in services; she had completed the domestic violence support group and her work with a parenting educator. Mother was participating in individual therapy and had undergone a neuropsychological evaluation. As a result, Mother was diagnosed with an unspecified neurocognitive disorder (due to anoxia), posttraumatic stress disorder, and an unspecified personality disorder (with dependent and avoidant features). She was taking online education courses and expressed interest in becoming an advocate for domestic violence victims.
However, Mother expressed ambivalence about reunification. On two occasions, she told the social worker she was no longer interested in reunification because she felt unable to keep the children safe. Mother described being hypervigilant in public, fearing she would see Father or his family. In November 2015, Mother was seen with the paternal grandparents. The next day, Mother called the social worker to say she wished to continue reunification services. Mother eventually admitted phone and in-person contact with Father, dating back to the end of June. She did not report the contact to police until December 1, 2015.
Father had pleaded guilty to a misdemeanor, was working as a security guard, and had been recently incarcerated for a probation violation after the pepper spray and knife he used at work were found unsecured in his home. To comply with probation obligations, Father had begun a new domestic violence group and attended 14 of 52 meetings. He admitted calling Mother names and raising his voice, but continued to deny using violence other than in self-defense. Father's therapist did not see any benefit in continuing therapy because, if Father had been in contact with Mother, he was not truthful with his therapist. Prior to incarceration, Father visited consistently with the children and was affectionate. However, Elena and Andrea expressed reluctance to visit Father. During several visits, Father and the paternal grandmother insisted on questioning the girls repeatedly regarding bruises and scratches. On one such occasion, the paternal grandmother yelled at and hostilely approached the social worker. Father glared angrily at the social worker. During the commotion, Father and his family ignored Elena and Andrea, who were "stunned and froze."
Reports that Elena and Andrea were inappropriately touched in the foster home were investigated and deemed "unfounded."
Elena told the social worker she wanted to stay with her foster parents, who she calls "mommy" and "daddy." Elena's therapist reported she was "less afraid," but continued to worry about " 'everyone leaving [her] and not taking care of [her].' " She recently told her therapist that, when she was living with Mother and Father, Father had choked her. Andrea also appeared comfortable with the foster parents, who had enrolled her in speech class and requested an autism assessment.
At the contested review hearing, the social worker testified the "core" of Mother's and Father's case plans related to domestic violence treatment and respect of the restraining order. Despite this, Mother admitted in-person and telephone contact with Father and his family, which was "frightening" considering how much trauma he had caused Mother and the children. Accordingly, the social worker did not believe Mother could protect Elena and Andrea.
Father testified he left the initial domestic violence program because the director wanted him to admit violence against Mother that was not true. He was enrolled in a new group, which he preferred. He was now willing to admit his past "efforts to soothe and comfort" Mother, as well as pinning her against a wall, were abusive. He also admitted violating the restraining orders by communicating with Mother by telephone and in person on one occasion.
The juvenile court found Elena and Andrea could not be safely returned home, terminated the parents' reunification services, and set the matter for a section 366.26 hearing.
Section 366.26 Report and Hearing
The Department's section 366.26 report recommended termination of parental rights and adoption as the children's permanent plan. Elena and Andrea had developed a positive attachment to the foster parents, who wished to adopt them. Elena suffered reduced anxiety and wanted to stay in her foster home. Andrea had been diagnosed with mild to moderate autism and was receiving intensive speech and occupational therapy.
Mother had recently modified the restraining order to allow "friendly contact" with Father. With respect to visitation, it was observed that Mother's visits with the girls began and ended without incident, although, at times, the girls expressed reluctance to attend. Elena showed some signs of anxiety around visits. At the end of visits with Mother, the children were not distressed and appeared happy to reunite with the foster mother. Father's visitation also went well. He was affectionate with the girls, but had difficulty setting limits. Andrea and Elena expressed resistance to visiting with Father. The social worker characterized Father as "threatening" or "hostile" at times. Specifically, Father became argumentative after visitation supervisors asked him to remove his utility belt, which included pepper spray, a knife, and handcuffs. The social worker wrote: "Although interaction between the minors and [Father and Mother] may have some incidental benefit, such benefit does not outweigh the benefit they will gain through the permanence of adoption."
At the contested hearing, the social worker testified the girls would run up and hug Father at the beginning and end of visits. During one visit, Andrea did not want to leave Father; she said she wanted to go home with Father. Two of Father's friends testified Father was loving and patient with his daughters. Although the witnesses had not seen Father and the girls together in almost two years, they had never seen the children exhibit fear of Father.
Father testified he cared for the girls, along with Mother, after they were born. According to Father, the girls were bonded with him and Mother. Elena and Andrea ran up and hugged him at the beginning of visits and asked him when they were going home. He saw the girls draw pictures of the family together, holding hands. Father was attending a batterer's program as part of his probation, and he had learned that ordering Mother around and "the actions [he] took physically against her, were incredibly inappropriate and abusive." He had learned to control his temper.
The Department recommended termination of parental rights, as did the children's counsel. Father and Mother did not contest Elena's and Andrea's adoptability, but both argued the beneficial relationship exception applied. The juvenile court found it likely that Elena and Andrea would be adopted, found ICWA inapplicable, found the beneficial relationship exception did not apply to either parent, and terminated Mother's and Father's parental rights. The court explained: "Based upon the age of the children, based upon the relationship currently between the parents and the children, the Court [believes adoption] is in the children's best interest." Father and Mother each filed a timely notice of appeal.
II. DISCUSSION
Both Mother and Father contend they met their burden to show the beneficial relationship exception. Father raises an additional argument—that the juvenile court erred by failing to ensure proper inquiry and notice under ICWA. We address the ICWA argument first, but conclude neither argument has merit. A. ICWA
Father insists the juvenile court erred by finding ICWA did not apply without requiring an adequate inquiry into the children's possible Indian ancestry. Father suggests the juvenile court's finding, made at the jurisdiction/disposition hearing, that ICWA does not apply was in error because he filed a notification form suggesting he might have Native American ancestry, via an unidentified tribe, yet nothing in the record indicates the Department investigated further by speaking to extended family members. The Department, on the other hand, maintains it complied with ICWA's inquiry requirements and that insufficient information suggested Elena and Andrea are or may be Indian children.
"In passing [ICWA], Congress identified two important, and sometimes independent, policies. The first, to protect the interests of the Indian child. The second, to promote the stability and security of Indian tribes and families. [Citations.] [ICWA] sets forth minimum federal standards, both substantive and procedural, for protecting these identified policies." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) We address Father's ICWA argument despite his failure to exhaust it below or to appeal the claimed error at his earliest opportunity, via an appeal from the dispositional order. (See In re Isaiah W. (2016) 1 Cal.5th 1, 6, 15 [parent may challenge ICWA finding via appeal from order terminating parental rights, even if challenge was not made in appeal from a dispositional order where finding was first made]; In re Marinna J. (2001) 90 Cal.App.4th 731, 733 [parent's failure to raise ICWA error before juvenile court does not forfeit claim on appeal].) "The generally accepted rule in dependency cases is that the forfeiture doctrine does not bar consideration of ICWA notice issues on appeal. [Citation.] 'As this court has held, "[t]he notice requirements serve the interests of the Indian tribes 'irrespective of the position of the parents' and cannot be waived by the parent." ' " (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195; accord, Isaiah W., at p. 13.)
The ICWA protects "Indian children who are members of or are eligible for membership in an Indian tribe." (25 U.S.C. § 1901(3).) For purposes of the ICWA, " 'Indian child' means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).) The Indian status of a child need not be certain to trigger ICWA's notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471; In re Kahlen W., supra, 233 Cal.App.3d at p. 1422.) A child may be an "Indian child" under ICWA even if neither of the child's parents is enrolled in a tribe. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254.)
ICWA provides: "[W]here the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify . . . the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of . . . the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by . . . the tribe or the Secretary . . . ." (25 U.S.C. § 1912(a), italics added.) When the notice provision is violated, an Indian child, parent, Indian custodian, or the Indian child's tribe may petition to invalidate the proceeding. (25 U.S.C. § 1914.)
"[N]otice to the Secretary [of the Interior] is accomplished by notice to the [Bureau of Indian Affairs (BIA)]." (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1406.)
The federal ICWA notice provisions are incorporated into California law. (See §§ 224-224.3.) Thus, section 224.2, subdivision (b), similarly provides: "Notice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter . . . unless it is determined that [ICWA] does not apply to the case in accordance with Section 224.3." (Italics added.) The law also imposes "an affirmative and continuing" duty on the court and the social services agency "to inquire whether a child . . . is or may be an Indian child . . . ." (§ 224.3, subd. (a), italics added; accord, Cal. Rules of Court, rule 5.481(a)(4) ["[i]f the social worker . . . or petitioner knows or has reason to know that an Indian child is or may be involved, that person or entity must make further inquiry"].) "The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: [¶] (1) A person having an interest in the child, including the child . . . or a member of the child's extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe." (§ 224.3, subd. (b)(1).) If the court or social worker knows or has reason to know that an Indian child is involved, "the social worker . . . is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members . . . and contacting the tribes and any other person that reasonably can be expected to have information regarding the child's membership status or eligibility." (§ 224.3, subd. (c).) "[T]he obligation is only one of inquiry and not an absolute duty to ascertain or refute Native American ancestry." (In re Antoinette S., supra, 104 Cal.App.4th at p. 1413.)
Neither ICWA itself, nor the implementing federal regulations in effect while this case was pending, define "reason to know." (In re Breanna S. (2017) 8 Cal.App.5th 636, 650.) However, new federal regulations (applicable to any child custody proceeding initiated on or after Dec. 12, 2016) identify circumstances in which a court has "reason to know" the child is an Indian child. (25 C.F.R. § 23.107(c) (2017); Breanna S., at p. 650, fn. 7.) Because the new regulations do not apply to this case, we rely on the California statute and case law.
California courts once "consistently held that a 'suggestion' that the child is an Indian child is sufficient to invoke notice." (In re Alice M., supra, 161 Cal.App.4th at p. 1198; accord, In re Merrick V. (2004) 122 Cal.App.4th 235, 246; In re Gerardo A. (2004) 119 Cal.App.4th 988, 991 ["one of the purposes of ICWA notice is to enable the tribe to investigate whether a child is eligible for tribal membership"]; In re Nikki R. (2003) 106 Cal.App.4th 844, 848 ["determination of a child's Indian status is up to the tribe; therefore, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement"].) But the California Legislature's comprehensive reorganization of the ICWA statutes, effective January 1, 2007, has been read to raise the bar for ICWA notice in California courts. (See Legis. Counsel's Dig., Sen. Bill No. 678 (2005-2006 Reg. Sess.) 6 Stats. 2006, Summary Dig., p. 465; In re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520 ["both the federal regulations and the California Welfare and Institutions Code require more than a bare suggestion that a child might be an Indian child"].)
Father maintains the standard triggering the Department's duty of inquiry is "much lower" than that required to trigger notice. (See In re Alice M., supra, 161 Cal.App.4th at p. 1200 ["under [California Rules of Court, rule 5.481(a)(4)(C)] the duty to inquire is triggered by a lesser standard of certainty regarding the minor's Indian child status ('is or may be involved') than is the duty to send formal notice to the Indian tribes ('is involved')"].) We need not determine the precise standard triggering ICWA inquiry. Given the information the Department did obtain as a result of inquiry before, during, and after the detention hearing, we conclude even the lower threshold—a suggestion of Indian ancestry—did not trigger the duty of further inquiry. Contrary to Father's suggestion, the Department was not required in this case to conduct further inquiry, or send notice to the BIA, before the juvenile court found ICWA inapplicable.
Father maintains his statements at the detention hearing and in the parental notification of Indian status form "amounted to a suggestion that [Elena and Andrea] were Indian children, triggering the social worker's duty to inquire further." Father insists the social worker did not fulfill that duty because the record is not clear that the social worker spoke to extended family members about Indian ancestry. We review the juvenile court's ICWA findings under the substantial evidence standard, which requires us to determine whether reasonable, credible evidence of solid value supports the court's order. (In re Hunter W. (2011) 200 Cal.App.4th 1454, 1467; In re N.M. (2008) 161 Cal.App.4th 253, 264; In re H.B. (2008) 161 Cal.App.4th 115, 119-120.) "We review factual findings in the light most favorable to the trial court's order." (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430 (Rebecca R.).)
In Rebecca R., supra, 143 Cal.App.4th 1426, a father maintained an order terminating his parental rights should be reversed because no affirmative documentation in the record showed the social services agency asked him whether the child might have Indian heritage. (Id. at p. 1429.) The reviewing court rejected the claim, explaining: "The evidence in the entire record shows that the duty of inquiry was satisfied. [The social services agency] did not mark the boxes on the face of the petition, which it was under obligation to do if the child had any indication of Indian heritage. The trial court, at the earliest possible moment, affirmatively ordered [the agency] to inquire of the parents as to Indian ancestry. . . . The social worker's reports consistently indicated that the ICWA did not apply. There is no reason to think that [the agency] failed to carry out the court's order, and father has provided none here. (Evid. Code, § 664 [presumption of duty regularly performed].) There are no inconsistencies in the evidence to rebut the presumption that [the agency] properly carried out its duties . . . ." (Id. at p. 1430.)
Here, like in Rebecca R., the record before us does not include any affirmative evidence the duty to inquire was unmet. The juvenile court obtained a completed parental notification of Indian status form from Father, inquired about his background, received further information from the Department, and only then found ICWA did not apply. Father first told a social worker he did not have any Indian ancestry and then, later, said he may have Indian ancestry. When the Department followed up with him, he said he "may have Indian ancestry by way of his great great maternal grandmother who migrated to Mexico; however he is unaware of the tribe's name, nor does he have access to information regarding the matter." We agree with the Department that the information Father provided was too vague and speculative to trigger ICWA notice requirements or to give the juvenile court reason to believe Elena and Andrea might be Indian children. (See In re J.D. (2010) 189 Cal.App.4th 118, 125; In re Jeremiah G., supra, 172 Cal.App.4th at pp. 1518-1521 [father's vague claim Indian heritage was "a possibility," without naming a tribe and which was later retracted, insufficient to require ICWA notice]; In re Aaron R. (2005) 130 Cal.App.4th 697, 707 ["grandmother's brief allusion to her own membership in an historical association falls far short of giving the court reason to know that Aaron may be an Indian child"]; In re Hunter W., supra, 200 Cal.App.4th at p. 1468 [mother "cite[d] no authority in which the court found sufficient information to trigger ICWA when the parent could not even identify the tribe the family may have had connections to"]; In re O.K. (2003) 106 Cal.App.4th 152, 154-157 [notice requirements not triggered by grandmother's statement that child "may have Indian in him" because "where were [sic] from it is that section"].)
In re Michael V. (2016) 3 Cal.App.5th 225 is distinguishable. In that case, after submitting Judicial Council Forms, form ICWA-020 indicating she might have Indian ancestry through her own mother, the mother told the juvenile court, " 'When I was . . . going through court for myself . . . my social worker, she was looking up my mom because she's never . . . [been] a part of my life. So they were trying to track her down. And when they did, they told me she was full-blood Indian. And they tried seeing if I could get services for that, but they said something about, like, the number.' " (Id. at p. 230.) The mother further indicated her own mother " 'was from two tribes,' " but she could not remember which. (Ibid.) The juvenile court ordered further investigation, but also ruled that, at that point, ICWA did not apply. (Ibid.)
Relying on Hunter W., O.K., and Jeremiah G., the reviewing court agreed that the mother's recollection of what she had been told by a social worker in her own dependency case, "was insufficient without further substantiation to require notice to the BIA." (In re Michael V., supra, 3 Cal.App.5th at p. 234.) Yet, the Michael V. court found the social services agency's inquiry inadequate. It explained: "The Department, as well as the court, has an affirmative obligation 'to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members' (§ 224.3, subd. (c); see Cal. Rules of Court, rule 5.481(a)(4)(A)) if a person having an interest in the child 'provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child's biological parents, grandparents, or great-grandparents are or were a member of a tribe' (§ 224.3, subd. (b)(1); see Cal. Rules of Court, rule 5.481(a)(5)(A)). [The mother] did precisely that, suggesting [the children's] maternal grandmother was a member of two Indian tribes in answer to questions from the court. Although the court then ordered the Department to investigate the children's possible Indian ancestry, the Department did not take appropriate affirmative steps to do so; and the court failed to ensure that an adequate investigation had been conducted. [¶] . . . The Department made no effort to locate the children's maternal grandmother to interview her even though it was she who reportedly had the direct link to a tribe." (Michael V., at p. 235, italics added.)
Here, unlike in Michael V., the Department and juvenile court had no concrete information before it suggesting Elena and Andrea may be Indian children. Father asserts that he, too, "identified a relative who was a member of an Indian tribe." Not so. Father did not state that his great, great grandmother was Indian, only that she may have been. Furthermore, Father could not identify any tribe Elena and Andrea may have ties to. Contrary to Father's repeated suggestion the Department did nothing further to follow up with Father or the paternal grandparents, in its jurisdiction/disposition report, the Department indicates it unsuccessfully attempted to obtain further information. In that report, despite his initial indication the parental grandparents (with whom he lived) might have further information, Father told the Department he had access to no further information. Father's statement that his "great great grandmother may have been Indian" was speculative and insufficient to trigger further inquiry or notice to the BIA. (Italics added.) B. Beneficial Relationship Exception
Both Mother and Father contend the order terminating parental rights must be reversed because the juvenile court erred in finding the beneficial relationship exception inapplicable. We disagree.
"Once reunification services are terminated . . . , the focus of the proceedings changes from family reunification to the child's interest in permanence and stability." (In re G.B. (2014) 227 Cal.App.4th 1147, 1163.) "At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care." (In re S.B. (2008) 164 Cal.App.4th 289, 296; accord, § 366.26, subd. (b).) "Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) "[I]n order to terminate parental rights, the court need only make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated. . . . '[T]he critical decision regarding parental rights will be made at the dispositional or review hearing, that is, that the minor cannot be returned home and that reunification efforts should not be pursued. In such cases, the decision to terminate parental rights will be relatively automatic if the minor is going to be adopted.' " (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250; accord, § 366.26, subd. (c).)
Thus, at a section 366.26 hearing, "[a] finding . . . under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent . . . and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless . . . : [¶] . . . [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "[T]he burden is on the party seeking to establish the existence of one of the section 366.26, subdivision (c)(1) exceptions to produce that evidence." (In re Megan S. (2002) 104 Cal.App.4th 247, 252.)
Appellate courts have routinely applied the substantial evidence rule when reviewing a juvenile court's determination that an exception to termination did not apply. (See In re B.D. (2008) 159 Cal.App.4th 1218, 1235; In re Dakota H. (2005) 132 Cal.App.4th 212, 228; In re L. Y. L. (2002) 101 Cal.App.4th 942, 947; Autumn H., supra, 27 Cal.App.4th at pp. 576-577.) However, Division Three of this court has held that abuse of discretion is the proper standard (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), and other courts have applied a two-step review process wherein the substantial evidence rule is applied to the issue of regularity of visitation and contact and the abuse of discretion standard is applied to the issue of what detriment a child may suffer in severing the parent-child bond. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1317; see In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449-450 [application of the beneficial relationship exception requires a two prong analysis]). We believe the result would be the same in this case under an abuse of discretion standard, a substantial evidence standard, or the standard articulated in Bailey J. The practical differences between the standards are "not significant," as all three give deference to the juvenile court's judgment. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
This latter standard of review was first articulated by the Sixth District in In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1528, and it has since been adopted by courts in the Second and Fourth Districts (In re K.P. (2012) 203 Cal.App.4th 614, 622; In re J.C. (2014) 226 Cal.App.4th 503, 530-531).
Father's initial position is that the juvenile court erred by applying a more stringent meaning of "the child would benefit from continuing the [parental] relationship" than required by the plain meaning of the statute. (§ 366.26, subd. (c)(1)(B)(i).) He points to the following statement from the juvenile court: "One of the problems I think we have is the legislative terms. So we look at the term 'beneficial relationship.' That legally has significance well beyond that which everyone would use in an everyday vocabulary." We need not engage in the statutory construction Father suggests, as the argument a parent need only show "some benefit," from a continued relationship, has been repeatedly rejected. (In re C.F. (2011) 193 Cal.App.4th 549, 559 ["contact between parent and child will always 'confer some incidental benefit to the child,' but that is insufficient to meet the standard"]; In re Brittany C. (1999) 76 Cal.App.4th 847, 853 ["[t]o require that the parent need only show some, rather than great, harm at this stage of the proceedings would defeat the purpose of dependency law"]; Autumn H., supra, 27 Cal.App.4th at p. 575 [statute's second prong requiring that " 'benefit from continuing the [parent/child] relationship' " means that "the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents"].) In fact, "[b]ecause a parent's claim to such an exception is evaluated in light of the Legislature's preference for adoption, it is only in exceptional circumstances that a court will choose a permanent plan other than adoption." (In re Scott B. (2010) 188 Cal.App.4th 452, 469, italics added; accord, In re Celine R. (2003) 31 Cal.4th 45, 53.)
"Under section 366.26, subdivision (c)(1)(B)(i), parental rights cannot be terminated where the juvenile court 'finds a compelling reason for determining that termination would be detrimental to the child' because '[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.' The exception does not require proof the child has a 'primary attachment' to a parent or the parent has 'maintained day-to-day contact' with the child. [Citation.] [¶] The exception's second prong requiring that 'the child would benefit from continuing the [parent-child] relationship' means that 'the relationship promotes the well- being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.' [Citation.] The juvenile court 'balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer.' [Citation.] 'If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.' [Citation.] [¶] 'The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs are some of the variables which logically affect a parent/child bond.' " (In re C.B. (2010) 190 Cal.App.4th 102, 123-124 [relying on, inter alia, Autumn H., supra, 27 Cal.App.4th at pp. 575-576].)
"While the exact nature of the kind of parent/child relationship which must exist to trigger the application of the statutory exception to terminating parental rights is not defined in the statute, the relationship must be such that the child would suffer detriment from its termination." (In re Angel B. (2002) 97 Cal.App.4th 454, 467.) "Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (Autumn H., supra, 27 Cal.App.4th at p. 575.) "[T]he Autumn H. language, while setting the hurdle high, does not set an impossible standard nor mandate day-to-day contact. . . . A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction." (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) The exception "appl[ies] to situations where a dependent child benefits from a continuing parental relationship; not one . . . when a parent has [loving and] frequent contact with but does not stand in a parental role to the child." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.)
Mother and Father rely on In re S.B., supra, 164 Cal.App.4th 289, in which an order terminating parental rights was reversed because the juvenile court erroneously determined that the beneficial relationship exception did not apply. The social services agency in that case reported the father had " 'complied with every aspect of his case plan,' including maintaining his sobriety and consistently visiting S.B." (Id. at p. 293.) Nonetheless, the father's reunification services were terminated because the social worker opined that the father's physical and emotional health prevented him from reunifying with S.B. (Ibid.) The father had maintained supervised visits with S.B. three times a week. S.B. became upset when the visits ended and wanted to leave with the father. The father " 'demonstrate[d] empathy and the ability to put himself in his daughter's place to recognize her needs.' " (Id. at p. 294.) A bonding study revealed that the bond between father and daughter was " 'fairly strong.' " (Id. at p. 295.) During the observed visits, S.B. sat in the father's lap, played games, and colored. "In the middle of coloring, S.B. [told the father], 'I love you,' and he responded in kind. S.B. whispered and joked with [the father] and then spontaneously said, 'I wish I lived with you and Mommy and Nana.' " (Ibid.) The juvenile court found that the beneficial relationship exception did not apply and terminated parental rights. (Id. at p. 296.)
On appeal, the S.B. court concluded "there [was] no evidence to support the court's finding [the father] did not have some type of parental relationship with S.B. . . . [¶] . . . [¶] . . . As we recognized in Autumn H., [a parental] relationship typically arises from day-to-day interaction, companionship and shared experiences, and may be continued or developed by consistent and regular visitation after the child has been removed from parental custody. [Citation.] The record here fully supports the conclusion [the father] continued the significant parent-child relationship despite the lack of day-to-day contact with S.B. after she was removed from his care." (In re S.B., supra, 164 Cal.App.4th at pp. 298-299, italics omitted.) Because "the only reasonable inference [was] that S.B. would be greatly harmed by the loss of her significant, positive relationship with [her father]," the juvenile court erred when it found the beneficial relationship exception did not apply and terminated parental rights. (Id. at p. 301.)
Here, there is no dispute the first prong of section 366.26, subdivision (c)(1)(B)(i) has been met—both Mother and Father maintained regular visitation and contact with Elena and Andrea. We nonetheless conclude the juvenile court reasonably found that the children did not have a parental relationship with either Mother or Father that necessitated preservation at the expense of depriving the children of the permanency of adoption. This case is distinguishable from S.B., in that neither Mother nor Father successfully addressed the issues underlying the dependency.
There is certainly evidence in the record of attachment between the children and both Mother and Father. The children and parents are affectionate and playful during visits. There also is evidence both parents cared for some of Elena's and Andrea's daily needs before they were removed from parental custody—at ages five and three, respectively. But we cannot agree with Mother that Andrea and Elena were "healthy, happy, [and] thriving children," during that time. In fact, during the time the children lived with Mother and Father, domestic violence endangered their emotional security, a need to which both Father and Mother continue to demonstrate indifference. Andrea suffered severe development delays that were not receiving attention and Elena suffered serious anxiety.
Because of the parents' inability to keep the children safe, both physically and emotionally, Andrea and Elena had lived away from Mother and Father for approximately 18 months. During that time, Father never progressed to unsupervised visits and Mother did so only briefly, before resuming contact with Father. Although both Mother and Father made at least some progress on their case plans, the dysfunctional relationship between the two continued. Termination of parental rights will not be detrimental to Elena and Andrea. The prospective adoptive parents can provide Elena and Andrea with consistency, stability, affection, and responsiveness to their developmental and emotional needs. In the foster parents' care, Elena's anxiety had been lessened and Andrea had received attention to her developmental delays and disabilities. In short, both girls have blossomed in a secure and stable environment.
Mother's reliance on In re Jerome D. (2000) 84 Cal.App.4th 1200, is also misplaced. In that case, the nearly nine-year-old child had lived with his mother for the first six and one-half years of his life. The child expressed a desire to live with his mother, had unsupervised overnight visits with her, and had no other mother figure in his life. (Id. at p. 1207.) The child "seemed lonely, sad, and . . . 'the odd child out' " in his placement. (Id. at p. 1206.) Further, a bonding study showed the positive effect of the interaction between Jerome and his mother and that severance of the relationship would be detrimental to Jerome. The reviewing court ruled the evidence was insufficient to support a finding that the mother did not meet her burden of showing a beneficial parent-child relationship. (Id. at p. 1207.)
Here, by contrast, Father never progressed beyond supervised visitation, and Mother did so only briefly, there were no concerns regarding the girls' prospective adoptive parents, and there was no expert testimony regarding the positive effect of a continuing relationship with either parent. The record shows that, with the exception of one visit, neither child suffered emotional distress when separating from Mother or Father at visits. On the other hand, Elena verbalized her desire to remain with the foster parents and both girls demonstrated some anxiety and reluctance when visiting Mother and Father. Nor can we ignore Andrea's and Elena's special needs. (In re Dakota H., supra, 132 Cal.App.4th at p. 231.) Given the children's ages and developmental and emotional needs (autism and anxiety), the consistency, stability, and security offered by a permanent home is of utmost importance. Mother and Father have not shown the kind of stable, safe, and loving parental relationship from which the children may derive sufficient benefit to outweigh the benefits of adoption.
We recognize Mother was also a victim of Father's violence and may feel revictimized by termination of her parental rights. We applaud the initial efforts she has made to understand her role in the dysfunctional relationship that has put both her and her children at risk. Nonetheless, she remains unable to separate herself from Father and, at this stage of the proceedings, her children's needs for stability and security are paramount. (In re G.B., supra, 227 Cal.App.4th at p. 1163.) The juvenile court did not abuse its discretion, or make a finding unsupported by substantial evidence, in determining the beneficial relationship exception inapplicable.
III. DISPOSITION
The juvenile court's order terminating parental rights is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.